As filed with the Securities and Exchange Commission on June 24,
1996 Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
VIDEONICS, INC.
[Exact name of Registrant as specified in its charter]
California
(State or other jurisdiction of incorporation)
77-0118151
(I.R.S. Employer Identification No.)
1370 Dell Avenue
Campbell, California 95008
(Address of Principal Executive Offices)
Videonics, Inc.
1996 Stock Option Plan
(Full title of Plan)
Mr. Michael L. D'Addio
Chief Executive Officer
Videonics, Inc.
1370 Dell Avenue
Campbell, California 95008
(408) 866-8300
(Name, address and telephone number of agent for service)
Copies to: Wise & Shepard LLP
3030 Hansen Way, Suite 100
Palo Alto, California 94304
(415) 856-1200
Attention: Jerrold F. Petruzzelli, Esq.
Approximate date of commencement of proposed sales:
From time to time after the effective date
of this Registration Statement
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- --------------------------- -------------------------- -------------------------- -------------------------- ---------------
Title of each class of Proposed Proposed maximum Amount of
securities to be Amount to be registered maximum offering price aggregate registration
registered per share (1) offering price(1) fee (1)
- --------------------------- -------------------------- -------------------------- -------------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, $500,000 $10.3125 $5,156,250.00 $1,778.00
no par value
- --------------------------- -------------------------- -------------------------- -------------------------- ---------------
<FN>
(1) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum offering
price per share and the registration fee are based on the reported
average of the bid and asked prices for Videonics, Inc. Common Stock on
the NASDAQ National Market System on June 20, 1996. Page 1 of 22
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 1
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by Videonics,
Inc. ("Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), are incorporated by reference herein and shall be deemed to be a
part hereof:
1. Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
2. Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996.
3. The description of Registrant's Common Stock contained in a Registration
Statement on Form S-1 filed with the Commission under the Securities Act of
1933, as amended, and declared effective on December 15, 1994, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
respective dates of filing such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents");
provided, however, that the documents enumerated above or subsequently filed by
the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act
in each year during which the offering made by this Registration Statement is in
effect prior to the filing with the Commission of the Registrant's Annual Report
on Form 10-K covering such year shall not be Incorporated Documents or be
incorporated by reference in this Registration Statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Jerrold F. Petruzzelli, a partner of Wise & Shepard LLP, counsel for
Registrant, is the sole and beneficial owner of 40,000 shares of Registrant's
common stock. Such shares were acquired in open market purchases over a six
month period from October 30, 1995 through April 30, 1996.
Item 6. Indemnification of Directors and Officers.
Registrant has adopted provisions in its Amended and Restated Articles
of Incorporation (the "Articles") that limit the liability of its directors for
monetary damages arising from breach of their fiduciary duty as directors,
except to the extent otherwise required by the California Corporations Code.
California Corporations Code Section 317(h) provides that, with the exception of
expenses actually and reasonably incurred by a director in connection with the
successful defense on the merits of any threatened, pending or completed action
or proceeding or any claim, issue or matter therein and expenses specifically
authorized and approved by the court in which any proceeding is or was pending,
Registrant may not indemnify or advance money for expenses where such
indemnification or advance is inconsistent with a provision of Registrant's
Articles or Amended and Restated Bylaws (the "Bylaws"), a resolution adopted by
its shareholders or an agreement in effect at the time of the accrual of the
alleged cause of action asserted in the proceeding which prohibits or otherwise
limits indemnification. Registrant is not aware of any provision in its Articles
or Bylaws, in a shareholder resolution, or in any other agreement that is
inconsistent with Registrant's ability to provide indemnification. Each of
Registrant's directors will continue to be subject to liability for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of the law, acts or omissions that a director believes to be contrary
to the best interests of Registrant or its shareholders or that involve the
absence of good faith on the part of the director, any transaction from which a
director derives an improper personal benefit, acts or omissions that show a
reckless disregard for the director's duty to Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing his duties as a director, of a risk of serious
injury to Registrant or its shareholders, acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to Registrant or its shareholders, improper transactions between the
director and Registrant, and improper distributions to shareholders or loans or
guarantees to directors and officers. Moreover, such limitation of liability
does not limit the liability of Registrant's directors under the federal
securities laws and does not affect the availability of equitable remedies, such
as injunctive relief or rescission.
Registrant's Bylaws provide that Registrant shall indemnify its
directors and officers to the fullest extent permitted by California law,
including circumstances in which indemnification is otherwise discretionary
under California law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors or
officers, such indemnification obligations may be against public policy as
expressed in the Securities Act and may therefore be unenforceable. Moreover,
Registrant's provisions relating to limitations of liability of its directors
will not limit the directors' exposure to monetary liability under the
Securities Act. Registrant does not have an officer and director liability
insurance policy.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of Registrant where indemnification will be
required or permitted. Registrant is not aware of any threatened litigation or
proceeding which may result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed in the following Exhibit Index are filed as part
of, or incorporated by reference into, this Registration Statement.
Exhibit Number Description
4.1 Amended and restated articles of incorporation of
Videonics, Dated December 19, 1994 (filed as exhibit
3.1 to Registrant's Annual Report on form 10-k for
the fiscal year ended December 31, 1994, file number
0-25036, and incorporated herein by reference)
4.2 Amended and Restated Bylaws of Videonics,
Inc., as adopted by the Board of Directors on
October 27, 1994 (filed as Exhibit 3.2 to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994,
file number 0-25036, and incorporated herein by
reference)
4.3 Videonics, Inc. 1996 Stock Option Plan, and related
documents.*
5 Opinion of Wise & Shepard LLP*
23 Consent of Coopers & Lybrand L.L.P., Independent
Accountants*
-----------------------------------
* filed herewith
<PAGE>
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of this
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bonafide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
__________________
1 This information is not required to be included in, and is not incorporated by
in reference in, this Registration Statement.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Campbell, State of California, on this 21st day of
June, 1996.
VIDEONICS, INC.
By: /s/ Michael L. D'Addio
Michael L. D'Addio
Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer or director of
Videonics, Inc. whose signature appears below constitutes and appoints Michael
L. D'Addio and James A. McNeill, jointly and severally, his attorneys-in-fact
and agents, each with full power of substitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments, including
post-effective amendments and supplements to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on June 21, 1996, by the following
persons in the capacities indicated.
Signature Title
/s/ Michael L. D'Addio Chairman of the Board,
Michael L. D'Addio Chief Executive Officer,
President and Director
/s/ James A. McNeill Vice President of Finance,
James A. McNeill Chief Financial Officer and
Assistant Secretary
/s/ Mark C. Hahn Director, Chief Technical
Mark C. Hahn Officer, and Secretary
/s/ Carl E. Berg Director
Carl E. Berg
/s/ N. William Jasper, Jr. Director
N. William Jasper, Jr.
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
Videonics, Inc.
(Exact name of issuer as specified in its charter)
================================================================================
<PAGE>
Videonics, Inc.
Sequential
Exhibit Number Description Page Number
4.3 Videonics, Inc. 1996 Stock Option 12
Plan, and related documents
5 Opinion of Wise & Shepard LLP 20
23 Consent of Coopers & Lybrand L.L.P., 22
Indendent Accountants
<PAGE>
Exhibit 4.3
Exhibit 4.3
VIDEONICS, INC.
1996 STOCK OPTION PLAN
Effective February 12, 1996
1. Purpose.
(a) The purpose of this Stock Option Plan (the "Plan") is to provide a
means whereby selected eligible employees of VIDEONICS, INC., a California
corporation (the "Company") may be given an opportunity to purchase common
stock of the Company (the "Common Stock"). The Internal Revenue Code of
1986, is referred to herein as the "Code."
(b) The Company, by means of the Plan, seeks to retain the services of
its current key employees, and to secure and retain the services of new key
employees, corporate directors and consultants necessary for the continued
improvement of operations.
2. Stock Options.
(a) Stock options granted pursuant to the Plan may, at the discretion
of the Board of Directors of the Company, be granted either as an Incentive
Stock Option ("ISO") or as a Nonstatutory Stock Option ("NSO"). An ISO
shall mean an option described in Section 422 of the Code. An NSO shall
mean any option not meeting the requirements of Section 422 of the Code. An
option designated as an NSO will not be treated as an ISO.
(b) Subject to the limitations of Section 3, below, each non-employee
director ("Outside Director") serving on the Board as of August 31st of
each year and who does not own more than two percent (2%) of the Company's
common stock (taking into account the conversion of all options owned by
such Outside Director) will be granted nonstatutory stock options to
purchase four thousand five hundred (4,500) shares of the Company's common
stock, for so long as they serve as directors of the Company. In addition,
each Outside Director newly elected or appointed to the Board after
February 11, 1996 will initially be granted options to purchase six
thousand (6,000) shares of the Company's common stock and thereafter will
be granted options to purchase four thousand five hundred (4,500) shares of
the Company's common stock on August 31st of each year for so long as they
serve as directors of the Company. The exercise price of all such options
must equal the fair market value of the Company's common stock on the grant
date and such grants shall become exercisable at a rate of 1/6 every six
(6) months such that all such options will be vested three (3) years after
the grant date.
3. Administration.
(a) The Board of Directors (the "Board"), whose authority shall be
plenary, shall administer the Plan, unless and until such time as the Board
delegates administration of the Plan pursuant to subsection 3(c).
(b) The Board, whose determinations shall be conclusive, shall have
the power, subject to and within the limits of the express provisions of
the Plan:
(i) To grant options pursuant to the Plan.
(ii) To determine from time to time which of the
eligible persons shall be granted options under the Plan, the number
of shares for which each option shall be granted, the term of each
granted option and the time or times during the term of each option
within which all or portions of each option may be exercised (which at
the Board's discretion may be accelerated).
(iii) To construe and interpret the Plan and options
granted under it and to establish, amend, and revoke rules and
regulations for its administration. The Board, in the exercise of this
power, shall generally determine all questions of policy and
expediency that may arise and may correct any defect, omission or
inconsistency in the Plan or in any option agreement in a manner and
to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(iv) To grant options in exchange for cancellation of
options granted earlier at different exercise prices; provided,
however, that nothing contained herein shall empower the Board to
grant an ISO under conditions or pursuant to terms that are
inconsistent with the requirements of subsection 4(b), below, or
Section 422 of the Code.
(v) To prescribe the terms and provisions of each
option granted (which need not be identical) and the form of written
instrument that shall constitute the option agreement.
(vi) To amend the Plan as provided in Section 10,
below.
(vii) Generally, to exercise such powers and to
perform such acts as are deemed necessary or expedient to promote the
best interests of the Company.
(viii) To take appropriate action to cause any option
granted hereunder to cease to be an ISO; provided, however, no such
action may be taken by the Board without the written consent of the
affected optionee.
(c) The Board may, by resolution, delegate administration of the Plan
(including, without limitation, the Board's powers under subsection 3(b)
above) to an existing committee acting under the authority of the Board,
consisting of not less than two (2) members of the Board, each of whom
shall not at any time within one (1) year prior to his or her service as an
administrator of the Plan have received a grant or award of equity
securities pursuant to the Plan or any other plan of the Company or any of
its affiliates. The Board shall have complete discretion to determine the
composition structure, form, term and operation of any committee
established to administer the Plan. The Board at any time may revest in the
Board the administration of the Plan.
4. Shares Subject to Plan and to Option.
(a) Subject to the provisions of Section 9, below (relating to
adjustments upon changes in stock), the stock which may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate Five
Hundred Thousand (500,000) shares of the Company's authorized Common Stock
and may be unissued shares, reacquired shares, or shares bought on the
market for the purpose of issuance under the Plan. If any options granted
under the Plan shall for any reason terminate or expire without having been
exercised in full, the stock not purchased under such options shall be
available again for the purpose of the Plan.
(b) If the aggregate fair market value of stock with respect to which
ISOs are exercisable for the first time by any individual during any
calendar year exceeds the amount provided in Section 422(d) of the Code,
such options representing stock in excess of the Section 422(d) annual
limitation shall be deemed to be a grant of an NSO to the extent of such
excess.
5. Eligibility.
(a) Incentive Stock Options may be granted only to full or part-time
employees of the Company. The price to be paid for each share of common
stock upon the exercise of an option shall be determined by the
Administrator at the time the option is granted, but shall in no event be
less than eighty-five percent (85%) in the case of a nonstatutory stock
option, and one hundred percent (100%) in the case of an incentive stock
option, of the fair market value of a share of Common Stock on the date the
option is granted.
(b) No option shall be granted to any individual who, at the time such
option would be granted, owns stock possessing more than ten percent (10%)
of the total combined voting power of all classes of outstanding capital
stock of the Company, unless the exercise price is, in the case of a
nonstatutory stock option, not less than one hundred percent (100%) and, in
the case of an incentive stock option, not less than one hundred ten
percent (110%) of the fair market value of the Common Stock on the date the
option is granted, and in the case of an incentive stock option the period
within which the option may be exercised does not exceed five (5) years
from the date the option is granted.
(c) Directors of the Company who are not also employees of the Company
shall not be eligible for ISO, but are eligible for NSO. Independent
contractors shall only be eligible for NSO. Any employee may hold more than
one (1) option at any time.
6. Terms of Options.
Options granted pursuant to the Plan need not be identical, but each
option shall be granted within ten (10) years from the date the Plan is
adopted by the Board or approved by the shareholders, whichever is earlier,
shall specify the number of shares to which it pertains and shall be
subject to the following terms and conditions:
(a) The purchase price under each option shall not be less than
eighty-five percent (85%), in the case of an NSO, or one hundred percent
(100%), in the case of an ISO, of the fair market value of the stock
subject thereto on the last trading day prior to the date the option is
granted (if the Stock is publicly traded, its closing sales price on
NASDAQ, the over-the-counter market or on an exchange), as such value is
determined in good faith by the Board of Directors, by taking into
consideration (with respect to stock which is not publicly traded) the
Company's net worth, prospective earning power and dividend-paying
capacity, and other relevant factors.
Some of the "other relevant factors" are the goodwill of the business;
the economic outlook in the particular industry; the Company's position in
the industry and its management; the degree of control of the business
represented by the block of stock to be valued; and the values of
securities of corporations engaged in the same or similar lines of business
which are listed on a stock exchange. In addition to the relevant factors
described above, consideration shall also be given to nonoperating assets
including proceeds of life insurance policies payable to or for the benefit
of the Company, to the extent such nonoperating assets have not been taken
into account in the determination of net worth prospective earning power
and dividend-earning capacity.
(b) Except as otherwise set forth in Section 5, above, the term of any
ISO shall not be greater than ten (10) years from the date it was granted,
and the term of any NSO shall not be greater than ten (10) years and two
(2) days from the date it was granted.
(c) An option by its terms, shall not be transferable otherwise than
by will or the laws of descent and distribution and may be exercisable,
during the lifetime of the option holder, only by the individual to whom
the option is granted.
(d) Each option shall become exercisable on an annual basis as to not
less than twenty percent (20%) of the total number of shares subject
thereto.
(e) Upon the termination of a participant's employment, his rights to
exercise an option then held by him shall be only as follows:
(i) If a participant's employment, directorship or
consulting relationship is terminated by death or disability, he or
his estate, as the case may be, shall have the right for a period of
not less than one (1) year following the date of death or disability,
or for such longer period as the Board may fix, to exercise the option
to the extent the participant was entitled to exercise such option on
the date of his death or disability, or to the extent otherwise
specified by the Board, which may so specify, at a time that is
subsequent to the date of his death or disability, provided the actual
date of exercise is in no event after the expiration of the term of
the option. A participant's estate shall mean his legal representative
or any person who acquires the right to exercise an option by reason
of the participant's death or disability.
(ii) If a participant's employment, directorship or
consulting relationship is terminated for any reason other than "death
or disability," he may, for a period of at least three (3) months
following such termination (but in no event later than that date upon
which the option expires by reason of the lapse of time), or within
such longer period as the Board may fix, exercise the option to the
extent such option was exercisable by the participant on the date of
such termination, or to the extent otherwise specified by the Board,
which may so specify at a time that is subsequent to the date of such
termination, provided the date of exercise is in no event after the
expiration of the term of the option.
(f) Options may also contain such other provisions, which shall not be
inconsistent with any of the foregoing terms, as the Board shall deem
appropriate. No option, however, nor anything contained in the Plan, shall
confer upon any participant any right to continue as an employee or
director of, or consultant to, the Company (or affiliate) nor limit in any
way the right of the Company (or affiliate) to terminate his employment or
other relationship with the Company at any time.
(g) Subject to any required action by the Company's shareholders, if
the Company shall be the surviving corporation in any merger or
consolidation, each outstanding option shall pertain and apply to the
securities to which a holder of the number of shares subject to the option
would have been entitled. A dissolution or liquidation of the Company or a
merger or consolidation in which the Company is not the surviving
corporation shall cause each outstanding option to terminate, unless the
surviving corporation in the case of a merger or consolidation assumes
outstanding options or replaces them with substitute options having
substantially similar terms and conditions.
7. Payments and Loans Upon Exercise.
(a) The purchase price of stock sold pursuant to an option shall be
paid in full either in cash or by certified check at the time the option is
exercised or pursuant to any deferred payment arrangement that the Board in
its discretion may approve; provided, however, that any interest to be paid
by an optionee in connection with any such deferred payment arrangement
shall be charged at the applicable federal rate as defined in Section
1274(d) of the Code.
(b) The Company may make loans or guarantee loans made by an
appropriate financial institution to individual optionees, including
officers, on such terms as may be approved by the Board for the purpose of
financing the exercise of options granted under the Plan and the payment of
any taxes that may be due by reason of such exercise.
(c) In addition, if and to the extent authorized by the Board,
optionees may make all or any portion of any payment due to the Company
upon exercise of an option by delivery of any property (including
securities of the Company) other than cash, so long as such property
constitutes valid consideration for the stock under applicable law.
(d) Where the Company has or will have a legal obligation to withhold
taxes relating to the exercise of any stock option, such option may not be
exercised, in whole or in part, unless such tax obligation is first
satisfied in a manner satisfactory to the Company.
8. Use of Proceeds from Stock.
Proceeds from the sale of stock pursuant to options granted under the
Plan shall be used for general corporate purposes.
9. Adjustments of and Changes in the Stock.
Subject to the rights of the Company set forth in Section 6 above, in
the event that the shares of Common Stock of the Company, as presently
constituted, shall be changed into or exchanged for a different number or
kind of shares of stock or other securities of the Company or of another
corporation (whether by reason of merger, consolidation, recapitalization,
reclassification, split-up, combination of shares, or otherwise), or if the
number of shares of Common Stock of the Company shall be increased through
the payment of a stock dividend, then there shall be substituted for or
added to each share of Common Stock of the Company theretofore appropriated
or thereafter subject or which may become subject to an option under the
Plan, the number and kind of shares of stock or other securities into which
each outstanding share of Common Stock of the Company shall be so changed,
or for which each such share shall be exchanged or to which each such share
shall be entitled, as the case may be. Outstanding options shall also be
amended as to price and other terms if necessary to reflect the foregoing
events. In the event there shall be any other change in the number or kind
of the outstanding shares of Common Stock of the Company, or of any stock
or other securities into which such Common Stock of the Company, or of any
stock or other securities into which such Common Stock shall have been
changed, or for which it shall have been exchanged, then if the Board of
Directors shall, in its sole discretion, determine that such change
equitably requires an adjustment in any option theretofore granted or which
may be granted under the Plan, such adjustment shall be made in accordance
with such determination. No right to purchase fractional shares shall
result from any adjustment in options pursuant to this Section 9. In case
of any such adjustment, the shares subject to the option shall be rounded
down to the nearest whole share. Notice of any adjustment shall be given by
the Company to each holder of an option which shall have been so adjusted
and such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of the Plan.
10. Amendment of the Plan.
The Board may not amend the Plan more than once every six months
except to comport with changes in the Code, the Employee Retirement Income
Security Act, or the rules thereunder. Except as provided in Section 9
(relating to adjustments upon changes in stock), no amendment shall be
effective, unless approved, within twelve (12) months before or after the
date of such amendment's adoption, by the vote or written consent of a
majority of the outstanding shares of the Company entitled to vote, where
such amendment will:
(a) Increase the number of shares reserved for options
under the Plan;
(b) Materially increase the benefits accruing to
participants under the Plan; or
(c) Materially modify the requirements of Section 5 as to
eligibility for participation in the Plan.
It is expressly contemplated that the Board may amend
the Plan in any respect necessary to provide the Company's employees
with the maximum benefits provided or to be provided under Section 422
of the Code and the regulations promulgated thereunder relating to
employee incentive stock options and/or to bring the plan or options
granted under it into compliance therewith.
Rights and obligations under any option granted before
any amendment of the Plan shall not be altered or impaired by
amendment of the Plan, except with the consent, which may be obtained
in any manner deemed by the Board to be appropriate, of the person to
whom the option was granted.
11. Termination or Suspension of the Plan.
The Board at any time may suspend or terminate the Plan. The Plan,
unless sooner terminated, shall terminate at the end of ten (10) years from
the date the Plan is adopted by the Board or approved by the stockholders
of the Company, whichever is earlier. An option may not be granted under
the Plan while the Plan is suspended or after it is terminated.
Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted,
which may be obtained in any manner that the Board deems appropriate.
12. Listing, Qualification or Approval of Stock; Approval of Options.
All options granted under the Plan are subject to the requirement that
if at any time the Board shall determine in its discretion that the listing
or qualification of the shares of stock subject thereto on any securities
exchange or under any applicable law, or the consent or approval by any
governmental regulatory body or the shareholders of the Company, is
necessary or desirable as a condition of or in connection with the issuance
of shares under the option, the option may not be exercised in whole or in
part, unless such listing, qualification, consent or approval shall have
been effected or obtained free of any condition not acceptable to the
Board.
13. Binding Effect of Conditions.
The conditions and stipulations hereinabove contained or in any option
granted pursuant to the Plan shall be and constitute a covenant running
with all of the shares of the Company owned by the participant at any time,
directly or indirectly whether the same have been issued or not, and those
shares of the Company owned by the participant shall not be sold, assigned
or transferred by any person save and except in accordance with the terms
and conditions herein provided, and the participant shall agree to use his
best efforts to cause the officers of the Company to refuse to record on
the books of the Company any assignment or transfer made or attempted to be
made, except as provided in the Plan and to cause said officers to refuse
to cancel old certificates or to issue or deliver new certificates therefor
where the purchaser or assignee has acquired certificates for the stock
represented thereby, except strictly in accordance with the provisions of
this Plan.
14. Effective Date of Plan.
The Plan shall become effective as determined by the Board but no
options granted under it shall be exercisable until the Plan has been
approved by the vote or written consent of the holders of a majority of the
outstanding shares of the Company entitled to vote.
15. Miscellaneous.
The use of any masculine pronoun or similar term is intended to be
without legal significance as to gender.
16. Financial Reports.
The Company shall provide financial and other information regarding
the Company, on an annual or more frequent basis, to each individual
holding an outstanding option under the Plan, as required pursuant to
Section 260.140.46 of Title 10, California Code of Regulations.
Exhibit 5
June 21, 1996
Videonics, Inc.
1370 Dell Avenue
Campbell, CA 95008
Dear Sirs:
We are acting as counsel to Videonics, Inc. (the "Company") in
connection with the Registration Statement on Form S-8 to be filed on June 24,
1996 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"), covering 500,000 shares of the Company's Common Stock, no
par value, to be issued under the Company's 1996 Stock Option Plan (the
"Shares").
We have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as we have
deemed relevant or necessary as the basis for the opinion hereinafter expressed.
In all such examinations, we have assumed the genuineness of all signatures on
original or certified copies and the conformity to original or certified copies
of all copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to such opinion, we have relied upon, and assumed the
accuracy of, certificates and oral or written statements and other information
of or from public officials, officers or representatives of the Company, and
others.
Based upon the foregoing, we are of the opinion that the Shares, when
issued, delivered and paid for in accordance with the terms of the 1996 Stock
Option Plan will be validly issued, fully paid and non-assessable shares of
Common Stock of the Company.
You are advised that Jerrold F. Petruzzelli, a partner of this firm, owns
40,000 shares of the Company's Common Stock, all of which have been purchased in
open market purchases between October 30, 1995 and April 30, 1996.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Wise & Shepard LLP
WISE & SHEPARD LLP
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 (File No. ) of our reports dated February 2, 1996, on our
audits of the consolidated financial statements and financial statement schedule
of Videonics, Inc. as of December 31, 1995 and 1994, and for each of the three
years in the period ended December 31, 1995, which reports are included in the
Annual Report on Form 10-K for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
June 20, 1996
